United States v. Lister ( 2023 )

Case: 23-40261 Document: 00516956115 Page: 1 Date Filed: 11/03/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
November 3, 2023
No. 23-40261 Lyle W. Cayce
Summary Calendar Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Mikedrion Lister,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:21-CR-539-1
______________________________
Before Barksdale, Engelhardt, and Wilson, Circuit Judges.
Per Curiam: *
The district court revoked Mikedrion Lister’s term of probation and
sentenced him to 18-months’ imprisonment. Lister contends—and the
Government agrees—that the written revocation judgment contains a
clerical error. Lister and the Government seek a remand for correction of the
judgment under Federal Rule of Criminal Procedure 36.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-40261 Document: 00516956115 Page: 2 Date Filed: 11/03/2023
No. 23-40261
Rule 36 states: “After giving any notice it considers appropriate, the
court may at any time correct a clerical error in a judgment, order, or other
part of the record, or correct an error in the record arising from oversight or
omission”. Fed. R. Crim. P. 36. This rule applies “[w]here the record
makes it clear that an issue was actually litigated and decided but was
incorrectly recorded in or inadvertently omitted from the judgment”. United
States v. Cooper, 979 F.3d 1084, 1089 (5th Cir. 2020) (citation omitted).
The district court’s written judgment contains a clerical error. At the
revocation hearing, the court explicitly found, inter alia, that the Government
failed to “establish” Lister violated the terms of his supervision by
possessing or using a controlled substance. Nevertheless, the written
judgment states Lister was found guilty of violating the condition prohibiting
possessing or using a controlled substance (“Violation Number 1” in the
written judgment). In other words, the written judgment “incorrectly
recorded” how the controlled-substance violation was resolved at the
revocation hearing. Id. (citation omitted). Accordingly, the clerical error in
the written judgment is subject to correction under Rule 36.
AFFIRMED; REMANDED to correct the clerical error in the
judgment.
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